Legal arguments that had better be avoided.

• Jurisdiction: United States

Section 35. Legal arguments that had better be avoided.—(a) Weak propositions. Perhaps the most important admonition under this heading is to avoid arguing weak questions or any in which you have no faith; their inclusion only serves to weaken the rest of your argument, and may well result in serious prejudice to your case.

Indeed, critics of outstanding competence have emphasized that it is the ability to discern weak points, and the willingness to discard weak points, that constitute the mark of a really able lawyer.

For example, Judge Learned Hand, in his tribute to one of America's greatest patent lawyers, the late Charles Neave, said:

With the courage which only comes of justified self-confidence, he dared to rest his case upon its strongest point, and so avoided that appearance of weakness and uncertainty which comes of a clutter of arguments. Few lawyers are willing to do this; it is the mark of the most distinguished talent.¹¹⁵

And the late William D. Mitchell, one-time Attorney General of the United States, and one of the ablest of Solicitors General, wrote:

Some lawyers, of course, do not have enough confidence in their own judgment or are not competent to select weak points, but the most effective advocate is one who has the courage to eliminate such arguments.¹¹⁶

Indeed, it may safely be laid down as a proposition of general application that to include a weak point is virtually certain to dilute every strong one.

I can cite two examples to illustrate the foregoing, both drawn from personal experience.

(i) In the Di Re case,¹¹⁷ a dozen or so years ago, the question, stated most favorably for the prosecution, was, "Whether, when officers have been informed that contraband is to be transferred at a certain place, and their observations reasonably justify the conclusion that a transfer has taken place in an automobile at such place, they are justified in searching and arresting a third person present in the automobile about whom they had no previous information." In the Government's petition for certiorari it was urged that Di Re's search could be justified without regard to the validity of his arrest, first, under the principle that a vehicle may be searched by officers having reasonable cause to believe that it is being used to carry contraband;¹¹⁸ and, second, on the ground that, in any event, probable cause existed for the arrest.¹¹⁹

After the petition was granted, and in the course of writing the brief on the merits, I was beset with doubts as to the soundness of the first proposition, because after all it is quite a step from searching the automobile to searching the people who ride in it. In the end, we reversed the order of the points in the brief, arguing first, that "the search of respondent was justified as incident to a lawful arrest," and second, that "alternatively the search of respondent was justified as incident to the search of a moving vehicle reasonably believed to be carrying contraband." At the oral argument I simply stated the alternative point, and did not in any sense bear down on it. But my real mistake was in leaving it in at all. It was a weak point, I had no faith in it, and yet it colored the entire case. We lost, and the Court's opinion took up and demolished our weak ground first. By the time that was disposed of, the Court was in a fine frame of mind to do execution on our strong point—and it did just that.

The weak point, then, didn't help; it only undermined the good point. I don't mean that we would necessarily have prevailed on the stronger point, but at least it would have been considered and disposed of in a more favorable setting. So I learned, and with the conviction derived of painful experience I urge, avoid arguing questions in which you have no faith.

(ii) The next example is from a case decided two years ago, Williams v. Lee.¹²⁰ There the basic problem was whether the courts of Arizona had jurisdiction to entertain an action brought by an Indian trader—a white man—against Navajo Indians living on the Navajo Reservation in respect of a sale that he had made to them there on credit. If the doctrine of Worcester v. Georgia¹²¹ still had vitality, then this question required a negative answer. The problem for counsel representing the Indians was whether to go further and to urge that the Arizona sheriff could not even enter upon the reservation to serve process; and/or¹²² whether to fall back on narrower ground, viz., an Interior Department regulation governing Indian traders which stated that "A trader may extend credit to Indians, but such credit will be at the trader's own risk,"¹²³ and arguing that the transaction was rendered unenforceable by virtue of that regulation.

In the Supreme Court of Arizona, counsel for the Indians set forth not only the basic proposition, but added both of the other contentions; that tribunal rejected all three. On the question of service, it held that to accede to the proposition urged would result in making the reservation a refuge for malefactors, and it disposed of the regulation by saying that this went to the merits and not to jurisdiction.¹²⁴

The first problem on certiorari was how far to urge the Indians' jurisdictional immunity. It was plain that the State court's fears of a privileged sanctuary were unfounded, since under a whole line of cases State process ran on an Indian reservation against non-Indians.¹²⁵ Moreover, there were expressions in a number of opinions that such process did not run there in respect of matters outside State cognizance.¹²⁶ Since the basic issue in the case was the extent of State jurisdiction, it was deemed wiser to drop the more difficult question of process, because after all, if the Indians' jurisdictional position were well founded, such process would be a nullity.

The regulation, however, appeared to furnish a sound basis for reversal of the judgment below, even though it meant resting the case on a narrower jurisdictional basis. So the petition for certiorari raised both questions, in these terms:

1. Whether the courts of Arizona have jurisdiction of an action brought against members of the Navajo Indian Tribe by a non-Indian in respect of a transaction arising within the boundaries of the Navajo Indian Reservation in Arizona.

2. Whether, where a non-Indian trader enters and trades on an Indian reservation pursant to federal regulations, which declare that he extends credit to Indians only at his own risk, the courts of Arizona have jurisdiction to determine the claim of such non-Indian trader against Indians in respect of a purchase on credit.

After certiorari was granted, and while preparing the brief on the merits, counsel for the Indians learned that originally the regulation had provided that "Credit to Indians will be at the trader's own risk, as no assistance will be given by Government officials in the collection of debts against Indians;"¹²⁷ and that the last clause had been stricken at the request of an association of Indian traders, who had successfully urged that, while the Indian Bureau was not to act as a collection agency, its officials should at least use moral suasion to induce Indians to meet their obligations. In the face of that textual history, counsel for the Indians felt themselves unable to argue that the single phrase, "at the trader's own risk," made the obligation such a nullity that it could not be sued upon in a court of competent jurisdiction. With this explanation, duly set out in the Indians' brief, the second question presented by the petition was formally abandoned.

At this juncture the Government, which had been invited by the Court to state its views,¹²⁸ picked up the regulation, and argued that it meant that legal or judicial remedies were unavailable to traders seeking to collect unsecured debts from their Indian customers. This argument made it possible for the United States to avoid taking any position on the jurisdictional question—an issue that involved delicate Federal-State relationships in an area where "Present Federal policy calls for the termination of Federal supervision of affairs of Indian tribes desiring such termination, to the extent practicable and as soon as termination is feasible."¹²⁹

In their reply brief, counsel for the Indians emphasized that the regulation point had been abandoned, not because they were urging the Court to make a broad constitutional pronouncement, but solely and simply because they felt that the regulation was not susceptible of the meaning that the Government professed to find therein. At the argument, the Indians' advocate proved that the regulation did not render a sale on credit unenforceable; he presented a list, by name and docket number, of literally hundreds of suits successfully brought by Indian traders against Indians, in respect of sales on credit, in courts of competent jurisdiction, namely, the Indian Tribal Courts.¹³⁰

The opinion of the Supreme Court took the broad jurisdictional ground, reaffirmed Worcester v. Georgia,¹³¹ strongly suggested that the sheriff should not have entered the reservation¹³²—and did not even mention the regulation that the Government had so strenuously put forward!

The result therefore fully vindicated the course taken, pursuant to the admonition earlier set forth: Avoid arguing questions in which you have no faith; instead, have the courage—and the good sense—to abandon such questions.

(b) Hornbook generalizations. Another sound caution is to avoid emphasizing or relying upon elementary, or hornbook, propositions. Any time, for instance, that a lawyer goes all out on the presumption of constitutionality, he all but indicates that he seriously doubts the validity of the statute on which he is relying. Similarly, any time a brief dealing with a question of statutory construction cites Holy Trinity Church v. United States,¹³³ an astute court at once recognizes that it is being asked to rewrite a law in the way the legislature should have done but didn't. (This is not...